Agora 3: International Criminal Law

Chaired by Judge Van den Wyngaert

The end of the Cold War unfroze international criminal law. What have been the main features, substantive, procedural and institutional, of the rapid growth of this field over the past two decades? Has international criminal law become more unified or more diverse? Has its development secured international justice? If not, what is required?

The impact of international criminal tribunals on the capacity of local courts to process war crimes cases: lessons from BiH, Sierra Leone and Colombia

DR ALEJANDRO CHEHTMAN, Research Associate, University College London (UCL)

Abstract: In post-conflict situations the domestic justice system is generally in a state of collapse. Doubts exist as to whether alleged perpetrators of international crimes would be prosecuted effectively, or as to whether they would receive a fair trial. International penal interventions are therefore envisaged as the way to assure individual accountability. Yet it has become increasingly clear that these tribunals lack themselves the capacity to deal with the vast majority of cases. If their impact is to be enhanced, they would need to rely on national courts. The way out of this circle is for them to develop the capacity of local legal systems. This paper examines the impact that these tribunals have had on the municipal legal systems by looking in-depth into Bosnia and Herzegovina, Sierra Leone and Colombia. It assesses initiatives developed in the context of the completion strategies in the ICTY and the SCSL, the (positive) complementarity regime of the ICC, and the work of the Court of BiH. It advocates three main propositions. First, it argues that there are crucial difficulties in coherence, coordination and sequencing of initiatives, and that these are structural and not merely contingent features of the dynamics in this area. Secondly, it suggests that efforts have been too focused on individuals without looking enough at the institutional and cultural context in which they are immersed. Finally, it submits that there are specific considerations of the institutional design of these courts that largely account for their impact on the capacity of municipal legal systems.

Biography: Alejandro Chehtman holds a BA from the University of Buenos Aires and an MSc in Political Theory from the LSE. In 2009, he was awarded his PhD in Law from the LSE for this thesis on The Morality of Extraterritorial Punishment. He has taught Public International Law at the LSE (2005-9), and International Criminal Law at the University Torcuato Di Tella (Argentina). Alejandro has published articles in Law and Philosophy and the New Criminal Law Review, and the book The Philosophical Foundations of Extraterritorial Punishment, based on his PhD dissertation, is forthcoming with OUP. In 2008, he joined the Faculty of Law at UCL as Research Associate working on the DOMAC Project, on the impact of international criminal tribunals on domestic prosecutions in mass atrocity cases.

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The processing of evidence in chambers in international criminal courts and tribunals

MR MARKO DIVAC ÖBERG, Legal Officer, Chambers, International Criminal Tribunal for the former Yugoslavia (ICTY)

Abstract: The quick advances in international criminal justice over recent years have clarified the rules of admission into evidence. At the ICTY, for instance, these rules are quite permissive. Given the size and complexity of a typical case, this requires Trial Chambers to weigh and evaluate vast amounts of evidence. The real challenges to the proper administration of justice are therefore not at the stage of admission into evidence, but rather at the stage of processing the evidence. What methodology should a Trial Chamber employ to ensure that it gets the facts right, and without major delays? How are vast amounts of evidence reduced to manageable portions without distorting it or losing sight of important parts? What kinds of evidence can be safely weeded out at an early stage? How are all the dots connected between different testimonies or documents which relate to the same facts but which were introduced into evidence many months or even years apart? Through which concrete process should judicial findings be made? This paper proposes certain responses to these questions and seeks to open a debate between judges and legal support staff in different Chambers and Tribunals, in order to exchange insights and discover best practices.

Biography: Marko Divac Öberg holds masters of law degrees from la Sorbonne and NYU. He has clerked at the ICJ (2003-2004), been a legal counsel to local human rights NGOs in Malawi and the Occupied Palestinian Territories (2004-2007), and worked in Chambers at the ICTY (since 2007).

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Revisiting the concept of perpetration in international criminal law

MS NEHA JAIN, Research Fellow, Max Planck Institute for Foreign and International Criminal Law

Abstract: This paper seeks to develop a doctrinal framework for holding individuals, especially those who are far removed from the scene of the crime, guilty as perpetrators of an international crime. There is currently a severe lack of literature on the theoretical basis for distinguishing between parties to an international crime. The paper thus begins with critically examining the premises on which the fault lines between principals and accessories are drawn in English and German criminal law, as major representatives of the common and civil law systems. There are obvious differences in attributing responsibility at the domestic and international levels: (1) The senior leader is held responsible not only for the crime of one perpetrator such as murder, but for the actions of several perpetrators taken as a whole, that is several murders that amount to genocide (2) This greater crime is quantitatively and qualitatively different from the single crime (3) Unlike in ordinary crimes, the role played by the non-physical perpetrator in bringing about an international crime is usually greater than that of the physical perpetrator. Despite these variations, the conceptual apparatus of domestic criminal law serves as an excellent starting point for understanding the principles underpinning allocation of responsibility. The paper combines this analysis with an examination of the unique nature of international criminal law, concentrating on the different objectives and constituencies it addresses, to assess whether one can build a case for a more capacious concept of perpetration that would encompass the responsibility of senior leaders for international crimes.

Biography: Neha Jain is a research fellow at the Max Planck Institute for Foreign and International Criminal Law and is also working on her DPhil thesis in law at Balliol College, Oxford as a Jowett Senior Scholar. Prior to joining the Max Planck, Neha has clerked for the former Chief Justice of the Supreme Court of India and interned with the United Nations Assistance to the Khmer Rouge Trials. She has also published numerous papers in journals such as the European Journal of International Law and the Journal of International Criminal Justice.

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